Citation NR: 9632052
Decision Date: 11/12/96 Archive Date: 11/22/96
DOCKET NO. 93-19 737 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to a permanent and total disability evaluation
for pension purposes.
REPRESENTATION
Appellant represented by: Attorney Michael J. Scurto
WITNESSES AT HEARING ON APPEAL
Appellant and his brother-in-law
ATTORNEY FOR THE BOARD
C. M. Flatley, Counsel
INTRODUCTION
The veteran had active service from April 1953 to April 1955.
In a letter dated in March 1993, the veteran’s attorney
appeared to raise the issue of entitlement to benefits under
38 U.S.C.A. § 1151 (West 1991), associated with an esophageal
perforation repair conducted during the veteran’s Department
of Veterans Affairs (VA) hospitalization in January 1992.
This matter is referred to the regional office (RO) for
appropriate action.
CONTENTIONS
It is contended that the veteran is unable to work due to the
effects of multiple disabilities.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991), has
reviewed and considered all of the evidence and material of
record in the veteran’s claims file. Based on its review of
the relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the claim.
FINDING OF FACT
The veteran failed to report without good cause for a VA
examination.
CONCLUSION OF LAW
Entitlement to a permanent and total disability rating for
pension purposes is not warranted. 38 U.S.C.A. § 5107 (West
1991); 38 C.F.R. §§ 3.326, 3.655 (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
Initially, the Board notes that the provisions of 38 U.S.C.A.
§ 5107 have been met, in that the claim for a permanent and
total disability rating for pension purposes is well
grounded, and that VA has adequately satisfied the duty to
assist the veteran in the development of the claim.
Where there is a well grounded claim for pension but medical
evidence accompanying the claim is not adequate for rating
purposes, a VA examination will be authorized. 38 C.F.R.
§ 3.326(a).
When entitlement to a benefit cannot be established or
confirmed without a current VA examination and a claimant,
without good cause, fails to report for such examination,
action shall be taken. Examples of good cause include, but
are not limited to, the illness or hospitalization of the
claimant, death of an immediate family member, etc. When the
examination was scheduled in conjunction with an original
claim other than a compensation claim, a reopened claim for a
benefit which was previously disallowed, or a claim for
increase, the claim shall be denied. 38 C.F.R. § 3.655(a)(b)
(1995).
In the instant appeal, the veteran underwent VA examinations
in July 1991 and August 1992. In August 1995, the veteran’s
case was remanded by the Board of Veterans’ Appeals (Board)
for a VA examination to determine the range of motion in
degrees of all joints affected by degenerative joint disease;
the joints included the ankles, hips, knees, cervical spine
and lumbar spine. The Board essentially indicated that such
results were required before the case could be finally
decided. In compliance with the remand, VA examinations were
scheduled. The record indicates that the veteran failed to
report for the VA examinations.
Subsequent communication from the veteran continues to show
the same address to which VA communications had been sent to
him since he applied for pension benefits. No explanation
was rendered as to why he failed to report for the
examinations.
The Board finds that the veteran failed to report without
good cause for the required examination that was scheduled by
the RO in compliance with the Board’s August 1995 remand.
See Dusek v. Derwinski, 2 Vet.App. 519 (1992); 38 C.F.R.
§ 3.326. Therefore, the Board is required by pertinent
regulation to deny the instant claim. 38 C.F.R. § 3.655.
The procedural prerequisites have been fully satisfied by the
RO’s prompt and complete communications. The veteran himself
failed unilaterally to cooperate in the development of his
own claim. The Board is mindful that the duty to assist is
not a one-way street. See Wood v. Derwinski, 1 Vet.App. 190,
reconsideration denied, 1 Vet.App. 406 (1991) (per curiam).
Therefore, the appeal is denied.
ORDER
A permanent and total disability evaluation for pension
purposes is denied.
M. SABULSKY
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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